The issue isn't that the perspective juror didn't disclose
bankruptcy.
9. On October 1, 2012, at Apple's request and in
reliance upon Apple's agreement that doing so would not constitute a waiver of
any privilege or work product protection (see Exh. A), Samsung disclosed to
Apple in the form of a declaration from me the information showing that it did
not discover the facts giving rise to the portion of Samsung’s Motion for JMOL
or New Trial related to Mr. Hogan's failure to disclose the Seagate litigation
until after the verdict. A true and correct copy of my prior declaration is
attached hereto as Exhibit B. On October 2, 2012, Apple requested additional
information regarding when Samsung and its counsel learned of Mr. Hogan’s 1993
bankruptcy. A true and correct copy of Apple’s email request is attached hereto
as Exhibit C. Samsung and its counsel learned on July 30, 2012 that Mr. Hogan
had declared bankruptcy in 1993 through a search performed on the LexisNexis
database. A true and correct copy of the report Samsung's counsel received on
July 30, 2012 is attached hereto as Exhibit D. The LexisNexis report does not
mention Mr. Hogan’s litigation with Seagate. Because Mr. Hogan’s 1993 bankruptcy
did not involve litigation and was not responsive to any voir dire questioning,
Samsung and its counsel did not investigate Mr. Hogan’s 1993 bankruptcy any
further until after the verdict.
The issue is that it appears to
have stemmed from a lawsuit between Seagate and the prospective juror, who did
not disclose the lawsuit in response to an interrogative from the court. The
transcript shows the prospective jurors were asked about being involved in
litigation.
Samsung had they not found out post verdict could have pursued
the matter under Rule 60 after judgement or order. The criteria outlined in
Rule 59 (b) and Rule 60 (b) (2) are distinct, and predicated on closure of the
adjudicated matter, Rule 60 (b) (2) has a requirement for diligence based on the
time for seeking relief (one year):
newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b);
Rule 59 has no requirement for timely
due diligence, bound instead by the time for an appeal. I've always wondered if
Apple weren't arguing against the wrong rule.
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